CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 juillet 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 15473/89                       by Hildegard and Monika KLAAS                       against the Federal Republic of Germany         The European Commission of Human Rights sitting in private on 9 July 1991, the following members being present:              MM.    C. A. NØRGAARD, President                  J. A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  A. S. GÖZÜBÜYÜK                  J. C. SOYER                  H. DANELIUS            Mrs.   G. H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    H. C. KRÜGER, Secretary to the Commission,         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 July 1989 by Hildegard and Monika KLAAS against the Federal Republic of Germany and registered on 11 September 1989 under file No. 15473/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows:         The first applicant, born in 1937, is a German national and a social welfare officer by profession.   The second applicant is her twelve-year-old daughter.   Both applicants are residing at Lemgo. Before the Commission they are represented by Mr. M. Stüben, a lawyer practising in Bad Salzuflen.         On 28 January 1986, at about 7.30 p.m., the first applicant, accompanied by her then eight-year-old daughter, returned by car from a visit and stopped at the gateway to the back yard of the house where she is living.   The Police Officers W. and B., who had followed her, charged her with having disregarded a red traffic light and driven away.   The first applicant denied this.   Upon further questioning, she admitted that she had drunk alcohol and agreed to an alcohol test. As repeated tests failed, the police officers informed her that she should accompany them to carry out a blood test.   The first applicant was subsequently arrested at the back door, brought to the local hospital for the blood test, and then released.   According to a later judgment of the Lemgo District Court (Amtsgericht) of 23 April 1987, the result of the blood-test showed a blood alcohol content level of 0.82 per mille.   This is disputed by the applicants.         With regard to the arrest the applicants give the following account: The first applicant agreed to the blood test, but explained that she wished first to bring her daughter to a neighbour.   One police officer refused this and dragged her to the police car.   She was warned that the could be charged with having resisted a public officer in the execution of his duties (Widerstand gegen die Staatsgewalt).   When she called her daughter, he stated that they would take the child along. Thereupon she nevertheless took her daughter by the hand, went to the back door, rang her neighbour's bell and opened the door.   At that moment one police officer grasped her, twisted her left arm to her back while she was turned around and hit her head on the corner of a window-sill. The police officers hand-cuffed her.   She lost consciousness for a short while.   At the police car she recovered and noticed severe pain in her left shoulder which was pressed backwards by one of the police officers.   After a while she was able to get into the police car and was taken to the hospital.         After these events the first applicant underwent two medical examinations on 29 and 30 January 1986.   On 11 February 1986, Dr. S, an internal specialist, certified that he had examined the applicant on 29 January and noticed abrasions, a bruise at her right cheek-bone of about 3 x 5 cm, large bruises of about 10 cm to her right arm, considerable problems in moving her left shoulder and bruises.   He also stated that she would have trouble for a long time, in particular with her left shoulder.   She was certified as ill until 8 February 1986.   Furthermore, on 10 February 1986, Dr. K, the head surgeon at the local hospital, certified that he had examined the first applicant on 30 January 1986.   His diagnosis was identical to that of Dr. S.         At the request of the Police Officer B., criminal proceedings were instituted against the first applicant on the suspicion of resisting a public officer in the execution of his duties, S. 113 of the German Criminal Code (Strafgesetzbuch), and of drunken driving, S. 316 of the Criminal Code.         In his report Police Officer B. stated, as regards the first applicant's arrest, that he and his colleague had the impression that the first applicant intended to escape.   At the back door the first applicant prepared to enter the house after her daughter and to close the door.   Thereupon he grasped the first applicant's right arm and tore her out of the entrance.   The first applicant started to strike out and tried to free herself.   There was an altercation. Police Officer W. took the applicant's left arm and twisted it behind her back (Polizeigriff).   The first applicant constantly offered resistance and further physical force was necessary to hand-cuff her. On their way to the police car she attempted to throw herself to the ground, and he and his colleague had to take her arms. At the police station, a lacerated wound was noticed at her right temple.         On 22 April 1986 the criminal proceedings against the first applicant were discontinued by the Detmold Public Prosecutor's Office (Staatsanwaltschaft).   The Office found that there was no reasonable suspicion concerning drunken driving.   As regards her offence of resisting a public officer, there was minor guilt and no public interest in prosecution.   Subsequently the first applicant was fined DM 500 for having committed the "regulatory offence" (Ordnungswidrigkeit) of driving with a blood alcohol content level of more than O.8 per mille, and a one month's prohibition on driving was imposed.   Her appeals were unsuccessful.         On 24 April 1986 the first applicant laid information against the Police Officers B. and W., alleging that they had caused bodily harm to her within the meaning of SS. 223 and 230 of the Criminal Code. Having consulted her lawyer, Mr. Stüben, the first applicant withdrew her criminal charges.   The Public Prosecutor's Office had allegedly warned her that otherwise the criminal proceedings against her would be continued.   The investigations against the Police Officers were discontinued on 10 July 1986.         On 18 July 1986 the first applicant filed a hierarchical complaint (Dienstaufsichtsbeschwerde) with the Head of the Detmold County Administration (Oberkreisdirektor) concerning the Police Officers B. and W.         On 18 September 1986, the Head of the Detmold County Administration, acting as Police Department (Kreispolizeibehörde), dismissed the first applicant's complaint.   In the decision, it is stated in particular that the police officers had stopped the first applicant after a traffic offence, noticed a smell of alcohol and proposed an alcohol test.   As the test failed four times, the first applicant was informed that she had to undergo a blood test. Thereupon she attempted to run into the back yard.   However, one of the police officers was able to seize her arm and explain that she was provisionally under arrest.   The request to take her daughter to a neighbour first was granted.   When the first applicant opened the door and tried to enter with her daughter, one of the police officers held her right arm fast, whereupon she started to kick and to beat with her left hand.   When the police officers held her tight she tried to escape by turning around.   She had to be hand-cuffed.   In the course of the arrest she did not knock her head against a window-sill.   The Department concluded that the use of force had been justified and not disproportionate to the aim pursued, i.e., the taking of a blood test.         On 10 April 1987 the first applicant instituted proceedings before the Detmold Regional Court (Landgericht) against the Land North-Rhine Westphalia and the two Police Officers B. and W., claiming compensation for the injuries suffered at her arrest.         On 10 July 1987 the Detmold Regional Court, in a partial judgment, dismissed her action against the Police Officers on the ground that, in cases of official liability, any personal liability on the part of the officials concerned was excluded.         On 30 October 1987 the Detmold Regional Court, having held a hearing on 9 October 1987, dismissed the first applicant's compensation claims against the Land of North-Rhine Westphalia.   The Court stated that the police officers had arrested the first applicant on the suspicion of drunken driving in order to have a blood test carried out. The first applicant was allowed to bring her daughter into the neighbour's house.   When she opened the door and the child entered the house, the police officers had a tight hold of the first applicant, twisting her arms behind her back (Polizeigriff).   They then hand-cuffed her. The first applicant thereby suffered a bruise to her right temple, concussion of her brain and a contusion of the left shoulder-joint. The Regional Court considered that the first applicant had failed to prove that the police officers had injured her by a disproportionate use of force. In this respect, the Court noted that the testimonies of the first applicant's daughter and of Police Officers B. and W. were contradictory, and that all three witnesses had an interest in the outcome of the proceedings.   A further witness could not confirm that one of the police officers had twisted the first applicant's arms behind her back;   the witness's statement that the first applicant had repeatedly bent forward would not necessarily lead to such a conclusion.   The first applicant could have injured herself in resisting the arrest.         On 12 September 1988 the Hamm Court of Appeal (Oberlandes- gericht) dismissed the first applicant's appeal (Berufung).   It confirmed in particular the Regional Court's taking and evaluation of evidence.         On 8 February 1989 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the first applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court considered in particular that the Court of Appeal's evaluation of the evidence did not appear arbitrary or otherwise in violation of constitutional law.         Following the communication of the present application to the respondent Government, the Federal Ministry of Justice invited the North-Rhine Westphalia Ministry of Justice to submit observations.   On 13 March 1990 the North-Rhine Westphalia Ministry of Justice invited the President of the Detmold Regional Court to submit observations and sent a copy of this letter to the President of the Hamm Court of Appeal for information.   On 26 March 1990 the President of the Hamm Court of Appeal sent the documents concerned to the President of the Hamm Bar Association for information and, if appropriate, for further action as regards disciplinary measures.   By letter of 4 April 1990 the Bar Association requested the applicants' representative to submit observations on the complaint directed against him.   The disciplinary proceedings have been suspended pending the outcome of the proceedings before the Commission.   COMPLAINTS   1.     The applicants complain under Articles 3 and 8 of the Convention that the first applicant, in the presence of the second applicant, was beaten by the police upon her arrest.   The first applicant thereby suffered serious and lasting injuries, and the second applicant's peace of mind was impaired.   2.     Furthermore, the applicants complain that the disciplinary proceedings against their representative hinder them in the effective exercise of their right of petition under Article 25 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 11 July 1989 and registered on 11 September 1989.         On 14 February 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.         The Government submitted observations on 28 May and 22 August 1990.   The applicants made submissions in reply on 28 August 1990.         On 7 March 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.         At the hearing which was held on 9 July 1991 the parties were represented as follows:   The Government   Mr. Stöcker,                 Ministerialrat, Federal Ministry of                             Justice, Agent;   Mrs. Chwolik-Lanfermann      Richterin am Oberlandesgericht,                             Federal Ministry of Justice, Adviser;   The applicants   Mr. Stüben                   Rechtsanwalt, Representative.   The applicants and the first applicant's husband were also present.   THE LAW   1.     The applicants complain that the first applicant, upon her arrest on the suspicion of drunken driving, was beaten up and seriously injured by two policemen in the presence of the second applicant.   a.     The Commission has examined these complaints under Articles 3 and 8 (Art. 3, 8) of the Convention.         Article 3 (Art. 3) of the Convention provides:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         Article 8 (Art. 8) of the Convention reads as follows:         "1.       Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority with       the exercise of this right except such as is in accordance with       the law and is necessary in a democratic society in the interests       of national security, public safety or the economic well-being       of the country, for the prevention of disorder or crime, for the       protection of health or morals, or for the protection of the       rights and freedoms of others."       b.     The Government maintain that the second applicant was only by coincidence witness of the events at the first applicant's arrest and cannot claim to be a victim of a violation of her rights under the Convention.         The Commission notes that the second applicant, the first applicant's then eight-year-old daughter, was present at her mother's arrest and experienced the altercation between the policemen and her mother, which resulted in lasting injuries.         The Commission, in these circumstances, finds that that the second applicant was affected by the alleged breaches of the Convention and may claim to be a victim within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention.   c.     The Government, in their written observations, have submitted that the first applicant failed to exhaust the domestic remedies available to her under German law.   It was not sufficient under Article 26 (Art. 26) of the Convention to institute official liability proceedings and fail with a hierarchical complaint.   She should have instituted further complaint proceedings both with regard to the order of arrest and in respect of the circumstances of her arrest. Moreover, she should have pursued criminal proceedings against the Police Officers B. and W.   At the hearing, the Government conceded that, in the course of the official liability proceedings, the German civil courts had the opportunity to review the lawfulness of the police measures in question.         The basis of the rule of exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention is that, before proceedings are brought in an international court, the state made answerable must have had an opportunity to redress the alleged damage by domestic means within the framework of its own legal system (cf. No. 5064/72, Dec. 29.9.75, D.R. 3 p. 57, with further reference).         The Commission finds that, in the context of the official liability proceedings instituted by the first applicant, the lawfulness of her arrest and the use of force by the Police Officers B. and W. had to be considered by the civil courts as essential conditions for her compensation claim.   The civil courts could decide upon these matters independently of any other proceedings, in particular criminal proceedings against the police officers concerned.         In these circumstances, the official liability proceedings constituted an effective and sufficient remedy under German law with regard to the complaints under Article 3 and 8 (Art. 3, 8) of the Convention which the first applicant now raises before the Commission. The condition under Article 26 (Art. 26) of the Convention that domestic remedies must be exhausted has, therefore, been met.   d.     The Government consider that the measures taken by Police Officers B. and W., even as presented by the applicant, did not reach the degree of seriousness required to justify invoking Article 3 (Art. 3) of the Convention. Furthermore, they maintain that, having regard to the facts as established in the domestic court decisions, the first applicant's arrest was lawful, and in particular the physical force necessary and proportionate to carry out the arrest.   Assuming an interference with the first applicant's right to respect for her private life under Article 8 para. 1 (Art. 8-1) of the Convention, it was justified under Article 8 para. 2 (Art. 8-2).         The Commission finds that the applicants' complaints under Articles 3 and 8 (Art. 3, 8) of the Convention raise difficult issues of fact and of law which are of such complexity that their determination should depend upon a full examination of the merits. These complaints cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.   2.     The Commission has further considered the applicants' complaint under Article 25 para. 1 (Art. 25-1) in fine of the Convention that the German authorities hindered them in the effective exercise of their right of petition in that disciplinary proceedings were instituted against their representative in the context of their application before the Commission.         Article 25 para. 1 (Art. 25-1) provides:         "The Commission may receive petitions addressed to the Secretary-       General of the Council of Europe from any person,       non-governmental organisation or group of individuals claiming       to be the victim of a violation by one of the High Contracting       Parties of the rights set forth in this Convention, provided that       the High Contracting Party against which the complaint has been       lodged has declared that it recognises the competence of the       Commission to receive such petitions.   Those of the High       Contracting Parties who have made such a declaration undertake       not to hinder in any way the effective exercise of this right."         The Government submit that the President of the Hamm Court of Appeal assumed a violation of the representative's professional duties, and, in accordance with an established practice, transmitted a copy of the file to the President of the Bar Association.   At the hearing the Government's representative assured the Commission that the Bar Association would be informed about the "European Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights" granting immunity, inter alia, to parties and their representatives.   He was convinced that, as a result of this information, any disciplinary proceedings pending against the applicants' representative in respect of the present application would be discontinued or otherwise terminated.         The Commission observes that conducting disciplinary proceedings against the representative of an applicant for bringing a petition with the Commission raises serious issues under Article 25 para. 1 (Art. 25-1) in fine of the Convention, and under the "European Agreement relating to persons participating in proceedings before the European Commission and Court of Human Rights", to which the Federal Republic of Germany is a Party (cf., as regards Article 25 para. 1 (Art. 25-1) in fine, No. 1593/62, Dec. 4.7.64, Collection 14 p. 34).         However, having regard to the above-mentioned declaration made by the Government's representative at the hearing, the Commission finds that there is no necessity to examine this matter further.         For these reasons, the Commission         DECLARES THE APPLICATION ADMISSIBLE       - unanimously - insofar as it concerns the first applicant and       - by a majority - insofar as it concerns the second applicant,       without prejudging the merits of the case;         DECIDES - unanimously - to take no further action in       respect of the alleged interference with the effective       exercise of the applicants' right of petition under       Article 25 para. 1 (Art. 25-1) in fine of the Convention.   Secretary to the Commission              President of the Commission      (H.C. KRÜGER)                         (C.A. NØRGAARD)